WJP & TP

[2002] FMCAfam 315

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WJP & TP [2002] FMCAfam 315

FAMILY LAW – Contravention of parenting orders – onus on respondent to prove reasonable excuse.

Applicant: WJP

Respondent: TP

File No: PAM2502 of 2002

Delivered on: 13 September 2002

Delivered at: Parramatta

Hearing Date: 13 September 2002

Judgment of: Ryan FM

REPRESENTATION

Counsel for the Applicant: Mr Berry

Solicitors for the Applicant: Bell & Partners

Counsel for the Respondent: Ms Kominos

Solicitors for the Respondent: Vizzone Ruggero & Associates

ORDERS

1. That the contravention filed 27 August 2002 is proved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 2502 of 2002

WJP

Applicant

And

TP

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

The proceedings

1. These proceedings today have been proceedings brought by WJP in which it is alleged that TP has contravened parenting orders.  The relevant orders are those entered by consent on 30 April 2002 in the Family Court.  Those orders have been registered in this court and thus the court has jurisdiction to hear the contravention application.

2. The focus of the proceedings is the parties' younger son, Marcus (not his real name).  Marcus was born in 1990.  He lives with the respondent, and pursuant to the orders, is to have contact to the applicant.

Did the respondent contravene an order?

1. Contact was due to take place on the weekend of 9 August 2002.  It did not.  It is common ground between the parties that that evening the parties' elder son, Scott (not his real name), and the applicant arrived at the mother's home, the nominated collection point, to collect Marcus for contact.

2. The events themselves are well documented in affidavit evidence, as well as on a video tape recording that was made without the applicant's knowledge or consent[1].  Over his counsel's objection I admitted the video into evidence.  It has been most illuminating.

   [1] Exhibit A

3. The applicant has shown that the ordered contact did not occur.  Thus the focus of the proceedings becomes whether or not the respondent had a reasonable excuse for non-compliance with the order.  "Reasonable excuse" is defined in s.70NE of the Act.  The standard of proof is identified as the balance of probability in s.70NEA.  The onus is on the respondent to prove the asserted reasonable excuse.

4. The focus of the applicant's case is whether the respondent has met her positive obligations established by both the Family Law Act and the orders to promote compliance with the contact order.  The focus of the respondent's case is that she says she has encouraged contact and hence met her obligations.  Secondly, that the behaviour of the parties' elder son, Scott, created a reasonable excuse because of the fear she held for not only her own safety, but also Marcus that evening.

5. I must examine two points in time.  Firstly, the events prior to the contact changeover, and secondly, the events of the handover themselves.

6. Underlying the proceedings is the fact that the applicant has

   
   

   re-partnered and now lives in a de facto relationship…